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Gaps in Refugee Protection: A Case Study on Denmark’s
Implementation of Gender-Guidelines in the Asylum System
Maya Kjærhauge Okkels
Human Rights
Bachelor of Arts, 15 Credits Spring Semester, 2020
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Abstract
In recent years, focus has been on asylum policies in the context of the growing numbers of asylum seekers arriving to Denmark but not much attention has been paid to the individual situations of women seeking asylum in Denmark. This thesis presents a case study on the Danish asylum system that has been analyzed using a comparative legal analysis, examining what international legal norms Denmark has implemented into the asylum system in practice. Using critical frame analysis, dominant frames and underlying narratives were identified in asylum practices, demonstrating the negative consequences female asylum seekers experience as a result. Although, great improvements have been made by Denmark, the analysis proved that there still exists gaps in the protection of women seeking asylum. This includes the recognition of gender-related grounds for asylum, gender-sensitive procedures in application assessment, and the gender responsive reception circumstances. Furthermore, this study concludes that Denmark still has steps to take to fully adopt gender-guidelines into practice, and that (non-) application of gender-guidelines and gender-sensitive approaches has negative consequences for women seeking asylum in Denmark.
Key words: Denmark, asylum seekers, women’s rights, gender-related persecution, gender-guidelines, Word Count: 13535
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List of Abbreviations
UNHCR United Nations High Commissioner of Refugees
UN United Nations EU European Union
CEDAW Convention on the Elimination of All Forms of Discrimination against Women IGC Intergovernmental Consultations on Migration, asylum and refugees
ECHR European Convention on Human Rights CEAS Common European Asylum System NGO Non-Governmental Organization FGM Female Genital Mutilation
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Table of Content
1. Introduction
1.1. Introduction to topic 6
1.2. Relevance to Human Rights 7
1.3. Previous research 7
1.4. Research problem and aim 8
1.5. Research questions 8
1.6. Delimitations 9
1.7. Social and ethical considerations 9
1.8.Outline of Chapters 10
2. Methods and material 10
2.1.Case Study 10
2.2.Comparative legal analysis 10
2.3.Material 11
3. Theory and theoretical framework 12
3.1.Standpoint Theory 12
3.2. Critical frame analysis 13
3.3. Definitions and concepts 15
4. Background: The case of Denmark 16
4.1. Changes in asylum policies 16
4.2. The Danish asylum system 16
4.3. Residence permits 17
5. The role of international and regional norms in Danish asylum practices 18
5.1. International framework 18
5.1.1. The 1951 Refugee Convention 19
5.1.2. UNHCR Gender Guidelines 19
5.1.3. Convention on the Elimination of All Forms of Discrimination against Women 20
5.1.4. The Istanbul Convention 21
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5.2.National framework 21
5.2.1. The Danish Aliens Act 22
6. Implementation of gender-guidelines in the Danish asylum system 23
6.1. Gender guidelines 23
6.2. Gender-sensitive approach to asylum procedure 23
6.2.1. Information and training of Officials 24
6.2.2. Consideration of trauma 25
6.3. Gender-based violence as a form of persecution 26
6.4.Gender-sensitive interpretation of the Convention grounds 27
6.4.1. Distribution of asylum status 28
6.4.2. Gender-related persecution 29
7. Evaluation of impacts of implementation and practices 30
7.1.Frame one: “Gender neutrality” in asylum policies 30
7.1.1. Gender equality 30
7.1.2. Gender 31
7.2.Frame two: Representation of asylum seekers 32
7.2.1. Vulnerability 32
7.2.2. Cultural considerations 33
7.2.3. Credibility 34
7.3.Frame three: Women’s issues as “private” 35
7.3.1. Public/private division 36
7.3.2. Violence against women 36
8. Discussion 38
9. Conclusion 39
10. Further research 39
Bibliography 40
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1. Introduction 1.1. Introduction to topic
Every year millions of people are forced to flee their homes, in need of protection elsewhere. At least half of these people are women. Despite the number of women in the global refugee population, women make up only a small part of asylum seekers in the European Union (EU) (Freedman, 2008, 414). This, however, does not mean that women are less persecuted than men, but the forms of persecution women face might differ from those of men. Women face dangers and abuse in the form of violence, assault, exploitation, and sexual harassment at every stage of their journey, including when they enter the EU (Amnesty International, 2016). Until the 1980s, women remained somewhat invisible in the debate on refugees and asylum seekers. As a result, inadequate attention has been paid to the policy and legislative aspects of gender-related persecution. Additionally, the specific factors affecting women as asylum seekers have largely been ignored (Bloch et al, 2000, 170).
Denmark has since the 1990s experienced several changes to its asylum legislation, and significantly in 2002 the political landscape changed towards stricter asylum policies, making it more difficult to gain asylum (Kreichauf, 2019, 53). The 1951 Geneva Convention on the status of Refugees (Refugee Convention hereinafter), which Denmark is a signatory state to, defines a refugee as “a person fearing persecution one the grounds of race, religion, nationality, membership of a particular social group or political opinion” (UN General Assembly, 1951, Art. 1). Historically situated, gender as a ground for persecution was never included in the text (UNHCR, 2002, 3). Many states have adopted gender guidelines aiming to interpret this definition, demonstrating a general acceptance that gender is relevant to what a refugee is. However, research indicates that States have failed to adequately undertake the process of gender-sensitive interpretation in asylum cases and to implement these guidelines fully (Querton, 2019, 379).
The causes and consequences of refugee movements are complicated and differs. Though the common experience of a refugee is acknowledged, categorizing it as such is problematic as it implies homogeneity (Bloch et al, 2000, 170). Such categorization can lead to states not
differentiating between the experiences of men and women in the asylum process. International norms on gender-equality proscribe gender-sensitivity to interpretation of the refugee definition and throughout the asylum process. By ratifying the Council of Europe’s Convention for Combating Violence Against Women (Istanbul Convention hereinafter) Denmark is required to recognize the specific vulnerabilities of women and girls and to ensure that claims are interpreted in a gender-sensitive matter (Council of Europe, 2014, Art. 60).
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1.2.Relevance to Human Rights
Human rights are claimed to be universal for every human being. However, the fight for gender equality is still ongoing in most parts of the world. Refugees are specifically vulnerable to human rights abuses but are supported by conventions such as the Refugee Convention. However, as it is very limited in its scope it does not address persecution based on gender. As this thesis will focus on women seeking asylum and whether sufficient measures are taken to ensure their rights both the Refugee Convention, the CEDAW and the Istanbul Convention will be addressed, as well as other international human rights documents concerning gender equality in refugee law.
1.3. Previous research
The problems that women encounter when seeking asylum have been studied by many scholars around the world (Valji et al, 2003; Zeigler, 2001). Specifically, attention to EU asylum systems and policies have been covered by various scholars (Cheikh et al, 2012; Bloch et al, 2001;
Freedman, 2009; Peroni, 2018) focusing on responses of EU member states to recommendations on interpretations of the Refugee Convention and whether gender-guidelines have been implemented. Freedman (2009) and Bloch et al (2001) have examined the extent to which national EU asylum legislations and policies have incorporated protection of victims of gender-related persecution. Though the topic has been discussed in relation to many EU countries, the Danish asylum system has not been a major theme of studies.
Scholarly work has highlighted the need to address gendered inequalities in refugee and asylum policies for many years (Crawley, 2001; Spijkerboer, 2000; Querton 2019). Specifically Spijkeboer (2000) and Crawley (2001) have provided extensive research on the topic of gender and refugee status, in relation to refugee status determination and use of gender as a persecution ground in the context of the British and Dutch asylum systems Earlier work has been concerned with the situation of refugee women and their vulnerabilities (Freedman, 2008, 2010). More recent studies also draw attention to how gender in interaction with other social categories like sexual orientation, religion and ethnicity can create inequalities within refugee status determination (Mügge et al, 2013; Honkala, 2017; Welfen, 2019). However, the recognition that asylum practices can
additionally create gendered inequalities has not played a major role in studies of asylum policies. Previous academic literature has contributed significantly to the field of gender and refugee law by showing how the refugee definition is not interpreted taking gender into account (Querton, 2019).
8 Some scholars have explored legal grounds to asylum from gender related persecution, where others have explored experiences that are gender-related but do not qualify for claims of asylum (Honkala, 2017, Spijkeboer 2000, Freedman 2009).
A lot of research has also been conducted on the advancement of asylum legislation in Denmark, as well as its transformation from humanitarianism to nationalism and on the impacts of legal paradigm shifts in migration policies (Kjær, 2003; Hedetoft 2006; Kreichauf, 2019). The situation of female asylum seekers has been discussed briefly in scholarly works in the context of changes to Danish asylum policies and in research looking at aspects of how refugee status is determined (Kjær, 2003; Foldspang, 2005). More recently, research has focused on responses to female asylum seekers who have experienced abuse, and on certain aspects of how their cases are dealt with (Canning (2019; Canning 2018). However, limited research is available on the consequences women face as a result of Denmark’s (non-) application of gender-guidelines in asylum procedures. Despite evidence from a number of other EU states that individual women are affected by failures to take gender-issues into account in refugee status determination (Bloch et al 2001, Spijkeboer 2000, Querton 2019), there is a need to examine Danish asylum practices. As it is yet to be done, this research will look at the Danish asylum system and whether appropriate gender-guidelines and gender-sensitivity has been implemented into asylum practices when determining refugee status in cases of women.
1.4.Research problem and aim
As a signatory state to Council of Europe’s Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), Denmark is under the obligation to implement guidelines aiming towards gender-sensitivity in the asylum process. The purpose of this thesis is to shed light on the obstacles women might face as asylum seekers in Denmark and to examine whether laws and practices in the system affect women disproportionally. It seeks to examine the legal and normative framework Denmark’s asylum system considers in asylum practices, whether Denmark has implemented sufficient guidelines and practices safeguarding the rights of women and lastly, whether this has any consequences for women seeking asylum in Denmark.
1.5.Research questions
How do practices in the Danish asylum system align with international norms on gender-equality contained in gender-guidelines? What consequences does this have for female asylum seekers?
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1.6. Delimitations
This thesis contains a single case study and is therefore limited to the asylum policies and practices of Denmark. The option of choosing several countries was also considered, as it would allow for a comparison on the improvements made by Denmark, and a more general examination of implementation of gender-guidelines. Focusing solely on a single case, risks not “seeing the bigger picture”. The thesis is also limited to only a part of the asylum process and does not consider other parts such as post-rejection, non-refoulment and family reunification practices. It was considered to include them, however, with the space available this would simplify the situation even further. This is a risk to take, as other parts of the asylum process also effect the situation of female asylum seekers and Danish asylum practices. Though the situations of male asylum seekers and other migrants are certainly affected by practices and gender norms as well, this thesis is limited to women seeking asylum.
When the work was initiated it was found that limited guidelines/documents from the Danish Government and the Danish Immigration Service concerning gender-sensitivity are available publicly. Information was therefore retrieved from other sources, which could mean that certain aspects might not be included. Limitations also exist to the comparative legal approach, arising from the fact that this has been a, time-limited study. In combination with the limited time available, the available space also limits examining certain issues into as much depth as would be valuable. Limitations to the theoretical framework was pointed out by Lombardo et al (2009) stating that that information can be limited and biased, and it takes a starting point from the assumption that public policies are intentional and rational (Lombardo et al, 2009, 140).
1.7.Social and ethical considerations
Ethical issues will be raised in my research, as it concerns refugees, asylum seekers and gender-sensitive issues. Though female asylum seekers are presented as a vulnerable group in this thesis, it is important to stress that this does not imply that they are weak individuals who cannot speak for themselves. Women and their experiences are different, and this thesis should stay respectful to that. Cases from the Danish Refugee Appeals Board are publicly available and do not contain any personal information.
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1.8.Outline of chapters
Chapter 2 and 3 outlines the methods and theoretical frameworks that will be used to answer the research questions and defines terms and concepts used in this thesis. Chapter 4 of this paper accounts for the background of Denmark and its asylum system, needed for understanding the complexity of asylum system. In Chapter 5, international and national legal frameworks will be accounted for. In Chapter 6, using the comparative legal approach in combination with the case study method, Denmark’s implementation of gender-guidelines into practices will be analyzed. In Chapter 7, dominant frames present in legislation and practices will further be analyzed, to understand which effects they have on women in the asylum system. Chapter 8 brings up a discussion on challenges and improvements encountered and to what extent they have consequences to women. Chapter 9 gives a conclusion of the thesis and an answer to the research questions. Chapter 10 elaborates on further research.
2. Methods and material
The aim of this paper is to examine whether Danish asylum practices align with international human rights norms, concerning the implementation of gender-guidelines in the asylum system. This thesis will therefore use the case study method to examine the case of Denmark and its asylum system. In order to analyze the case, firstly, a comparative legal approach will be used to examine national and international frameworks. Secondly, through a theoretical framework, the effects of (non-) application of gender-guidelines on women asylum seekers will be examined.
2.1. Case study
Since the research questions asks how practices in the Danish asylum system align with norms contained in international gender-guidelines, this research is an explanatory study of a case, inspired by Yin (1994). The case study method I have used is seen to “illuminate a decision or set of decisions: why they were taken, how they were implemented, and with what result” (Yin, 1994, 22). Explanatory case studies do not only explore and describe phenomena but can also be used to explain causal relationships like the relationship between Danish asylum practices, international norms and the situation of female asylum seekers (Yin, 1994, 18)
2.2. Comparative legal analysis
The comparative legal approach that will be used allows the researcher to determine what international human rights norms the Danish asylum system align with, by looking at both the national
11 and international legal framework. According to Reynolds “in certain cases, a legal comparison might well be the most relevant exercise, such as, in the EU context, for evaluating the transposition of an EU law into national implementing provision” (Reynolds, 2016, 372). Comparative legal analysis will be conducted on the case of Denmark in relation to both international norms and guidelines, as well as certain EU legal frameworks. As Reynolds (2016) mentions, it has been commonly used to evaluate the implementation of EU laws into national legal frameworks. The EU is an example of a system where common principles are developed. Thus, it has resulted in common guidelines and processes of uniting laws. In practice, this methodological approach remains especially important in cases of harmonization, as every harmonization project should be initially based on the consideration of the legal situation in the different states whose systems are to be harmonized (Reynolds, 2016, 372). Though this thesis focuses only on Denmark, the adaptations of national and international laws ensuring consistency between these two layers of law perpetuates the need for comparative legal analysis (Reynolds, 2016, 372).
According to Reynolds (2016), an analysis relying primarily on legal comparisons runs the risk of overlooking other crucial impacts. Furthermore, the role of the researcher is also to objectively identify the effects of (non-) implementation. In this case, only focusing on legal comparisons is not sufficient in addressing questions of impact. In addition to establishing the content of the law by using the comparative legal analysis, a theoretical framework contracted from feminist theory and gender theory will be applied through critical frame analysis. This means that the law and practices will be analyzed from different perspectives to evaluate the consequences of the legal and policy solutions chosen. To examine whether changes in Danish asylum practices and the (non-) application of gender guidelines affect women seeking asylum disproportionally, the theoretical framework of critical frame analysis will be used.
2.3. Material
To answer the research questions various materials will be used, including both primary and secondary sources. The primary material used for this thesis consists of conventions and legislation that confer rights of asylum (and the rights of women), as well as non-binding gender-guidelines issued by the UN Refugee Agency (UNHCR). An overview of international and national frameworks will also be presented in Chapter 6. Cases from the Danish Refugee Appeals Board, an independent judicial mechanism in Danish asylum law, will be used to examine what decisions are made in cases of women, and on what grounds. The material the thesis will examine, are relevant legal sources, in
12 particular article 1(7) of the Refugee Convention, Art. 60. of the Istanbul Convention and §. 7 of the Danish Aliens Act. The research also refers to other legal documents such as the CEDAW convention, the European Convention of Human Rights (ECHR) as well as the European Charter on Fundamental Rights.
The secondary sources consist of scholarly work, reports and official documents. Evaluation reports, and political statements on legal issues have been collected from the Council of Europe, Nordic Council of Ministers on Gender Equality, the UNHCR, United Nations (UN) Women and the European Parliament Policy Department. Gender-guidelines issued by the UNHCR provide a basis for the comparative legal analysis, as they are documents of significant importance concerning gender-sensitivity in the asylum process. The Council of Europe’s expert group on Action against Violence against Women and Domestic Violence (GREVIO) monitors state compliance with the Istanbul Convention. Their evaluation report on Denmark from 2017 and Denmark’s following comments will also provide direct information on asylum practices in Denmark. To examine if gender-guidelines and international standards for gender-sensitivity have translated into asylum practices, information from Non-Governmental Organization (NGO) reports and academic journals will also be drawn. This information has been supplemented by data provided by the Danish Immigration Service, the Ministry of Integration and Immigration and the Refugee Appeals Board. Material published in Danish has been translated by the author of this paper.
3. Theory and theoretical framework
This thesis seeks to examine whether legal and policy implementations have consequences, specifically on women. Standpoint theory and critical frame analysis will therefore be used examine what impacts asylum practices have on women.
3.1.Standpoint theory
To understand the effects of policy and legislative implementation on the individual lives of women in the asylum system I have adopted the standpoint theory approach, an approach that recognizes the distinctive features of women’s situations (Zeigler et al, 2000, 116). According to Zeigler et al (2000) “standpoint theory, unlike conventional empirical research, adopts the “standpoint” of the marginalized” (Zeigler et al, 2000, 116). It is an important theory, as it recognizes that all principles and policies are informed by those who develop and enforce them, and that it is the dominant group’s interest and values that create a framework for the relationships between those and the marginalized
13 (Zeigler et al, 2000, 116). Conventional legal analysis emphasizes “neutral” legal principles and might therefore overlook the perspective of the disadvantaged. Through the use of “gender-neutral” policies and practices, certain groups may be disadvantaged (Zeigler et al, 2000).
3.2.Critical frame analysis
In order to analyze the framework of those who enforce and implement asylum policies and practices ,as well as the impact this may have on women seeking asylum, this thesis ill adopt the theoretical framework of Lombardo, Verloo and Meier (2009) who look at what they refer to as “stretching and bending meanings of gender in equality policies” . The concept of gender-equality is according to Lombardo et al (2009) labelled differently amidst different policy actors, at both institutional and non-institutional levels and across national and international organizations (Lombardo et al, 2009: 1). As the UNHCR gender-guidelines were initially issued to consider the experiences of women and gendered aspects of seeking asylum, this framework will be used to look at how aspects of gender-equality have been implemented into the Danish asylum system, and what consequences this may have for women.
Critical frame analysis was originally conceptualized as the process in which people “make sense” of information and organize representations of meanings (Goffman, 1986). With a gendered perspective on problem representations, feminist adaptations of frame analysis (Lombardo et al, 2009) are well suited to help analyze gender consideration in Danish asylum policies and the effects thereof. Explained by Jalušić (2009) gender as a conceptual category entered political theory recently to become a specific concept of understanding and criticizing the world of existing inequalities (Jalušić ,2009, 53). Gender is more effectively understood as a social phenomenon in which identities are socially constructed. Thus, to take gender into account when interpreting the refugee definition involves looking at “a set of cultural institutions and practices that constitute the norms and standards of masculinity and femininity” (Querton, 2019, 386).
Frame analysis can be helpful to identify the major practices and norms people use to interpret and give meaning to reality (Lombardo et al, 2009, 11). Women have been ignored in policies and legislation both on the national and international arena for decades, however, gender-guidelines and other norms regarding gender-sensitive approaches in asylum systems, reflects an acceptance that gender is relevant to what constitutes a refugee (Querton, 2019). Using critical frame analysis will allow the researcher to seek out dominant frames under which actors work, that might influence the situation of women seeking asylum in Denmark. As critical frame analysis was created to analyze
14 and address power dynamics connected to policy making (Verloo 2005), it will allow the researcher to examine power dynamics in Danish asylum practices and its impacts on women seeking asylum. What characterizes the “critical” in frame analysis is the identification of who has a voice in
defining problems and solutions in official policy documents, enabling the detection of which actors are included or excluded from the possibility of framing an issue (Lombardo et al, 2009, 9).
Framing is not the only issue, but also the representation of what the issue is, what kinds of solutions are plausible and which actors are addressed. A “frame” is as described by Feree and Merill (2000) “a way of talking and thinking about things that links idea elements into packages” (Feree and Mill, 2000, 456). As used for the representation of meaning, a frame is always related to certain elements such as norms, roles and positions. According to Verloo (2005) policy frames are not only there to understand reality but are also the normative assumptions of which actors are unconscious of, that affect the interpretation of policy problems (Lombardo, 2009, 11). In the process of critical frame analysis, the analyst has to draw out dominant frames that seek to influence perspectives on an issue, and highlight connections between presented frames (Verloo, 2005, 19).
To operationalize this, the first step is, according to Dombos et al (2012) the identification of issue frames. The framing of issues by actors can be analyzed with reference to how it combines various frames. They can be analyzed by finding common normative claims in frames belonging to different policy issues. Thus, identifying frames is a crucial step both for the analysis of frames and for the analysis of framing processes in specific practices (Dombos et al 2012, 6). Frames are defined to be operating on various levels such as for a whole society, country or on the transnational level, for individual actors, but they can also be considered the results of practices that influence decision-making (Dombos et al, 2012, 5). Once dominant frames are identified, it will allow the researcher to examine what impacts policies and practices have on women seeking asylum in Denmark. Frames can be identified by searching for similarities and differences in what documents, legislation, court decisions and reports say about these areas (Dombos et al, 2012, 7). Borrowed from gender and feminist theory, this paper will look at whether practices show a commitment to gender-equality, whether a structural understanding of gender is present, and whether asylum practices also consider how gender and other forms of inequalities are intertwined (Jalušić, 2009, 53).
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3.3.Definitions and concepts
3.3.1. Refugee
The 1951 Refugee Convention defines a refugee as: “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion” (UN General Assembly, vol. 189, Art. 1).
3.3.2. Asylum seeker
This thesis will use the term asylum seeker extensively, from the definition given by UNHCR: “An asylum-seeker is someone whose request for sanctuary has yet to be processed” (UNHCR, Website).
3.3.3. Gender-related persecution
Gender-related persecution is a term covering the different claims in which gender is a relevant when determining refugee status. It is used to incorporate the different claims in which gender is relevant to the determination of refugee status (UNHCR, 2002, 2). Persecution may result from gender-discriminatory laws in a person's home country or from culturally accepted forms of violence against women, such as domestic abuse, FGM, or “honor” killings (UNHCR, 2002, 2).
3.3.4. Gender-based violence:
Gender-based violence describes acts committed against persons, because of their sex and/or socially constructed gender roles. It includes threats of violence and coercion, and can be physical, emotional, psychological or sexual of nature (UNHCR, n.d.).
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4. Background: The case of Denmark
For this paper Denmark was chosen as case study for different reasons. Denmark itself has experienced significant changes in their asylum policies and migration patterns over the last decade, as a result of asylum legislation changes (Canning, 2019; DRC, Asylum in Denmark, n.d.). Denmark is viewed in the international community as a frontrunner on gender-equality, and as progressive and rights-based nation, and as with all-signatories of the Refugee Convention, asylum can be sought in Denmark. What makes the case of Denmark especially interesting is that the asylum system in Denmark is usually seen as less problematic in relation to other states (Canning, 2016, 442).
4.1.Changes in asylum policies
Denmark was one of the first countries to ratify the Refugee Convention and has always been viewed in a positive light for its humanitarian principles and equality (UNHCR, 2014). In recent years Denmark has experienced changing policies towards refugees and asylum seekers (Canning, 2019b, 3). In terms of asylum seekers, the government drastically changed policies when removing the concept of “de facto” refugees in 2002 when “A new policy for aliens” was introduced to restrict and decrease the number of Aliens entering Denmark (Kjær, 2003, 255) Since the early nineties, Danish asylum legislations has been revised several times (Kreichauf, 2019, 45). Denmark’s relation with the EU in the fields of immigration and asylum reflects this development, as it stands outside of the Common European Asylum System (CEAS), meaning that its asylum and immigration legislations differ in some ways from the rest of the EU. In 2016, the Ministry of Migration and Integration was re-established under the new right-wing government. It is responsible for all issues related to asylum, and in both 2015 and 2016, the Danish Parliament adopted several new changes to the Aliens legislation (The Ministry of Integration and Immigration, n.d.).
4.2.The Danish asylum system
In Denmark, the Immigration Service (Udlændingestyrelsen) processes both applications of asylum and decisions on asylum (The Immigration Service, n.d.). In most cases, the police is the first authority an asylum seeker comes into contact with when entering Denmark and is from there registered in the system by name, date of birth and country of origin. New arrivals are lodged in an asylum center and are given an identification-card after registration (DRC, Asylum Procedure, n.d.). After registration, the asylum seeker is offered to fill out an application form in any given language.
17 The first interview is conducted by the Immigration Service, with a translator present and is referred to as “information and motivation interview1”. In the first interview the immigration officer asks about identity, nationality, family and travel route to Denmark among other things (DRC, Asylum procedure, n.d.; The Immigration Service, n.d.). After the first interview, the asylum seeker enters the second phase of the asylum process. Either the case is rejected on the grounds of “manifestly unfounded procedure2” or the second interview takes place. The second interview is also conducted by the Immigration Service, where the asylum seeker is to clearly explain his/her motive for asylum (DRC, Asylum procedure, n.d.). If the case is rejected it is automatically sent to the independent Refugee Appeals Board. The Refugee Appeals Board is an independent body, that acts as a judicial mechanism. It is responsible for hearing appeals of the Immigration Service decisions on asylum cases. Under the manifestly unfounded procedure, the Danish Refugee Council (DRC) cooperates with the Immigration Service in helping to determine whether an application is manifestly
unfounded (IGC, 2012, 130).
4.3.Residence permits
As a result of changes to the Aliens Act, it is only possible to obtain a temporary residence permit that can be prolonged for 1-2 years depending on the protection grounds and circumstances of the case (New to Denmark, n.d.). The Aliens Act provide three different forms of protection under § 7: §7 (1) Refugee Status/Convention status (Asyl/konventionsstatus): if you are covered by the Refugee Convention, and thereby have a well-founded fear of being persecuted because of your race, religion, nationality, your affiliation with a social group or your political views, and are located outside the country where you are a national (New to Denmark, n.d.)
§7 (2) Protection status (Beskyttelsesstatus): if you risk the death penalty or risk being subjected to torture or inhuman or degrading treatment or punishment if you return to your home country (New to Denmark, n.d.)
§7 (3) Temporary protection status(Midlertidig beskyttelsesstatus): if you are at risk of death or at risk of torture or inhuman or degrading treatment or punishment if you return to your home country
1 “Oplysnings-og motivations samtale”. Translated by the author
2 Manifestly unfounded procedure refers to cases where the motive is not relevant to asylum legislation or applicant is from a country that does not normally “produce” refugees
18 and if this risk is due to a particularly serious situation in your home country characterized by arbitrary violence and assault on civilians (New to Denmark, n.d.)
5. The role of international and regional norms in Danish asylum practices
This thesis intends to answer the research questions by first giving an account of international and national frameworks, such as relevant national and international laws and practices concerning gender-guidelines, gender-sensitivity, gender-equality and the rights of refugees. Secondly, these frameworks will be compared, to examine practices in the Danish asylum system and its implementation of gender-guidelines and gender-sensitive approaches into the asylum determination processes. Lastly, the consequences and impacts this might have on women seeking asylum in Denmark will be analyzed, by looking at the dominant frames in the Danish asylum system.
5.1. International framework
In this section an overview will be provided of international and national legal and normative frameworks in relation to gender-guidelines in cases of women.
The legal and normative framework on international migration and the rights of refugees include binding international law and non-legally binding practices and principles. Existing international law provides useful contributions to a normative and legal framework regarding the powers and responsibilities of States on how to handle migration and the rights and responsibilities of asylum seekers (Martin, 2005, 9, 2).
There is a growing call for implementation of gender-guidelines in the refugee field (European Parliament, 2016 Sect. 11). A body of gender-sensitive standards and guidance on displacement and asylum has both been built up on the international and EU level. In the context of the large influx of refugees coming to Europe in 2015, stakeholders including the UNHCR and the European Parliament have expressed strong concerns about protection gaps and called for further action to protect women and girls. The gender dimension has come into focus through international recognition that experiences of displacement are not gender-neutral, but profoundly shaped by gender and gender inequality (European Parliament, 2016, 12).
In practice, the act of interpreting the refugee definition has been undertaken by national administrative and judicial authorities. In this context and with the aim to ensure consistency in gender-sensitive interpretation of the refugee definition, guidelines have been issued by the UNHCR and States alike (Querton, 2019, 380).
19 5.1.1. The 1951 Refugee Convention and its 1967 Protocol
Likely one of the most important documents in history, is the Refugee Convention, that was one of the first attempts to create a universal definition of refugees, and provide for them international legal protection (Valji, 2001, 26). The Refugee Convention contains the definition of a refugee and establishes a list of rights. Historically situated, the Refugee Convention reflected mainly a male perspective (Querton, 2019, 391). Denmark signed and ratified the Refugee Convention in 1952, as one of the first countries to do so, and later the 1967 Protocol (UNHCR, State Parties Doc, 2015). This entails that Denmark grants asylum for refugees and persons seeking subsidiary protection. Refugees should be received both through the UNHCR’s relocation program and through application from persons arriving at the border (IGC, 2015, 136).
The basic structures and legal instruments to ensure the protection of refugees were established in the Refugee Convention, over 60 years ago. Since then, in accordance with the Statute, the UN General Assembly has issued through the UNHCR a series of resolutions. Ensuring the protection of refugee women requires adherence not only to the 1951 Convention and its 1967 Protocol but also to other relevant international instruments (Alfredsson, 1995, 364)
5.1.2. UNHCR Gender-Guidelines
International protection goes beyond adherence to legal principles. The protection of refugee women requires establishing programs and enforcing concerns that support their safety (Alfredsson, 1995, 365). As early as the 1980s, the UNHCR began to recognize the gaps in protection for women fleeing gender-based persecution and the issues involved in their cases (UNHCR, 1991). In 2002, the UNHCR issued guidelines on international protection on gender-related persecution, with regard to article 1 (A) of the Refugee Convention. The guidelines are not legally binding, but intent to provide legal interpretive guidance for governments, legal practitioners, and decision makers (UNHCR, 2000, 2). The Guidelines on the Protection of Refugee Women was prepared to help the UNHCR and its implementing partners to identify specific protection issues and problems facing refugee women. In doing so, the guidelines cover traditional protection concerns such as the determination of refugee status and outline various measures that can be taken to improve the protection of refugee women (UN, Guidelines, 1991, 3).
20 In 2008, the UNHCR issued the UNHCR Handbook for the Protection of Women and Girls which supplements the Guidelines on the Protection of Refugee Women (1991) and addresses both the legal framework as well as broader protection-related issues (UNHCR, 2008). In addition to issuing its own guidelines, the UNHCR has urged countries to develop and implement domestic criteria and guidelines for the protection of women claiming refugee status based on a well-founded fear of gender-related persecution (UNHCR, 2004, 2).
5.1.3. Convention on the Elimination of All Forms of Discrimination against Women
In 1979, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the UN General Assembly and entered into force as an international treaty in 1981. Denmark ratified CEDAW already in 1980, again being one of the first countries to do so. CEDAW provides the foundation for achieving equality between women and men through ensuring women's equal access to political and public life. To quote from Article 1 of CEDAW: no distinction, exclusion or restriction is to be made “on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, social, cultural, civil or any other field”(UN, CEDAW, Art. 1).
5.1.4. The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic violence (Istanbul Convention)
The Istanbul Convention was introduced in 2011 and was ratified by Denmark in 2014 (Council of Europe, 2017, 10). The Istanbul Convention is the most far-reaching international treaty to tackle violence against women, as it covers many areas and also looks at the root causes of violence against women, such as gender-stereotyping, harmful traditions towards women and general manifestations of gender-inequality. The purpose of the convention is to protect women against all forms of violence, to design a inclusive framework, policies and measures for the protection of and assistance to all victims of violence, and to provide support and assistance to organizations and law enforcement agencies to efficiently co-operate in order to adopt an united approach to eliminating violence against women and domestic violence.
21 Article 60 in the chapter on migration and asylum proscribes the following:
1) Parties shall take the necessary legislative or other measures to ensure that gender‐based violence against women may be recognized as a form of persecution within the meaning of Article 1, A (2), of the 1951 Convention relating to the Status of Refugees and as a form of serious harm giving rise to complementary/subsidiary protection.
2) Parties shall ensure that a gender‐sensitive interpretation is given to each of the Convention grounds and that where it is established that the persecution feared is for one or more of these grounds, applicants shall be granted refugee status according to the applicable relevant instruments.
3) Parties shall take the necessary legislative or other measures to develop gender‐sensitive reception procedures and support services for asylum‐seekers as well as gender guidelines and gender‐sensitive asylum procedures, including refugee status determination and application for international protection.
5.2. European legal framework
The Parliamentary Assembly of the Council of Europe (PACE) passed a recommendation in 1998 on the situation of refugee women in Europe considering that “Member States of the Council of Europe should eliminate all gender-related discrimination among refugees, and adapt the treatment of women refugees to their specific situation and requirements”(Parliamentary Assembly, 1998). In 2014, the Council of Europe adopted the Istanbul Convention. One of its aims is to “contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men” (Council of Europe, 2014b, 7).
In the EU, the Charter of Fundamental Rights establishes that the right to asylum shall be guaranteed with due respect for the Refugee Convention and in accordance with the Treaty establishing the European Community. The Charter also sets out that everyone is equal before the law, that any discrimination based on sex and sexual orientation should be prohibited and that equality between men and women must be insured in all areas (Charter, 2000, art. 21). The European Convention on Human Rights (ECHR) also ensures protection of asylum seekers and refugees under several articles (Council of Europe, 1950).
5.3.National framework
In addition to international law, the national law of the country governs the protection of refugee women and determines what legal status an individual receives. Additionally, many of the offences against women, such as rape and physical abuse, are punishable by national law. It is particularly
22 important that these instruments of governance provide protection for refugee women (UNHCR, 2004). Central in the regulation of refugee protection, is that a person who cannot receive national protection should be able to receive international protection (Lasse et al, 2017, 158).
5.3.1. The Danish Aliens Act
In Denmark, the asylum procedure and asylum institutions are governed by the Aliens Act of Denmark (Consolidation Act 1543 of 21 December 2019). The Refugee Convention and the ECHR has been transposed into Danish law by reference. In agreement with the Protocol on the position of Denmark, annexed to the Treaty of the EU, Denmark is not bound by the EU asylum acquis. However, Denmark has a parallel agreement enabling Denmark to take part in Council Regulations No. 343/20032 and Council Regulation No. 2725/20003 (IGC, 2012, 129).
In order to be granted asylum in Denmark, an applicant must meet the conditions listed in the Refugee Convention, or the conditions for protection status defined in § 7 of the Danish Aliens Act (New to Denmark, 2020). In addition, Denmark must provide protection to comply with international conventions it has ratified. For example, residence permits are granted to asylum seekers who risk the death penalty, torture, inhumane or degrading treatment or punishment if they return to their country of origin (New to Denmark, 2020). Paragraph 7 (1) in the Aliens Act incorporates the Refugee definition into Danish law, thus refugees who live up to the conditions of the Refugee Convention has the legal rights to residence permit in Denmark (Lassen et al, 2017, 164). In Danish asylum practice, human rights are not explicitly used to define the term “persecution” in the context of the Refugee Convention, but the character of, and the intensity of the human rights abuse is included in the assessment of the risk of persecution. This is clear, as human rights practice is a part defining whether an abuse falls under “protection status” § 7 (1) or “temporary protection status” under §7 (3) (Lassen et al, 2017, 179). In European, and thereby Danish asylum practice, it is sufficient that there is an undeniable risk of persecution, though persecution is in most cases defined as persecution from the State. However, what is essential, is whether the authorities are willing to or able to provide protection from the concerned persecution (Refugee Appeals Board, 2005).
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6. Implementation of gender-guidelines in the Danish asylum system
In this chapter the different international legal and normative frameworks will be compared with national frameworks. Likewise, this chapter will examine whether guidelines and gender-sensitive approaches have been implemented sufficiently into Danish asylum practices, in accordance with international standards. Dominant frames will also be identified, by highlighting similarities and differences in documents, case decisions and practices.
6.1.Gender guidelines
The Istanbul Convention recommend states to take “necessary legislative or other measures to develop gender guidelines” (Council of Europe, 2014, Art. 60). Guidelines can enable states to ensure a gender-sensitive application of refugee law, in particular, of the refugee definition (UNHCR, 2002, 11).
Throughout time, two approaches have generally been approached by States to ensure gender-sensitive application of refugee law, namely incorporation of legal interpretative guidance in legislation itself or development of guidelines for decision makers (UNHCR, 2002, 11). In addition to the international standards of procedural matters in asylum cases, Denmark has adopted special standards seeking to consider particular groups of asylum seekers, predominantly those in vulnerable situations (Vedsted-Hansen, 2017, 390; GREVIO, 2017, 21). As an important additional standard for case processing, Denmark has also introduced the opportunity for the use of female staff and interpreters. This also applies in cases where female asylum seekers are accompanied by male relatives (Vedsted-Hansen, 2017, 391; GREVIO, 2017, 21). In 2001 the senior coordinator of UNHCR Denmark pointed out the necessity for Denmark to implement national gender-guidelines in the Danish Asylum System (Information, 2001). Gender is considered in the Danish asylum system, if asylum seekers are deemed vulnerable, however, the Danish Immigration service still has no official, national gender-specific guidelines (Nordic Council, 2016, 3). Though it is recommended by the UNHCR and other institutions, it is not deemed necessary to proscribe legal and official guidelines if the same standards can be implemented through other measures (UNHCR, 2002, 11).
6.2.Gender-sensitive approach to asylum procedure
Ensuring gender-sensitivity in the asylum procedure, is recognized internationally as a tool for securing gender-equality. The Istanbul Convention proscribes that parties to the Convention should ensure that a gender‐sensitive interpretation is given to each of the Convention grounds, as well as in
24 gender‐sensitive reception procedures (Council of Europe, 2014, art. 60 (2).). Denmark is of the opinion that gender-sensitive aspects in the asylum procedure are important, and that they have implemented the necessary measures in accordance with international obligations (Nordic Council, 2016, 16; GREVIO, 2017, 24).
6.2.1. Information and training of Officials
During the asylum procedure it is important for caseworkers to understand that women may face continuous threats of human rights abuses in their country of origin because of their gender. It is crucial that possible gender aspects are taken into consideration (UNHCR, 2008, 66). EU Procedures Directive regulates the requirements for a personal interview and prescribes that “Member States shall ensure that the person conducting the interview is competent to take account of the personal and general circumstances surrounding the application, including the applicant’s cultural origin, gender, sexual orientation, gender identity or vulnerability (European Parliament, 2013, Art. 15). In Denmark, caseworkers at the Immigration Service are trained in interview techniques, which also includes consideration of vulnerable asylum seekers, and some effort is made in practice for particularly vulnerable applicants to have a choice about the sex of the person that they are interviewed (UNHCR, 2004, 109). However, the Danish Refugee Appeals board, do not have any specific guidance on this area for its members (Nordic Council, 2016, 4). The UNHCR guidelines, recommend that interviewers and interpreters of the same sex should be provided automatically for women claimants (UNHCR, 2002, 10). In Denmark, interviewers and interpreters are only provided if requested or deemed necessary (Council of Europe, 2017, 9; GREVIO, 2017, 19).
Interviews with the Immigration Service normally take place shortly after registration and are conducted to establish the motivation for seeking asylum and to obtain additional information on the case (DRC, Asylum Procedure, n.d.)The process is time-limited and will establish the credibility of the applicant. It is therefore necessary to provide sufficient information to the applicant prior to the interview and throughout, to make the applicant understand that any information related to gender must be disclosed in the first interview (Council of Europe, 2017, 58). The website of the Immigration Service and the Refugee Appeals Board display no information regarding this. However, local NGOs and a group of lawyers have published guidelines for female applicants to use (www.asyltilkvinder.dk). Denmark also offers a brochure on equal rights, issued by the Ministry of Children, Education and Gender Equality, available in the asylum registration waiting room at the reception center (Nordic Council, 2016, 8). An introduction video is also shown to all asylum seekers
25 about the process (GREVIO, 2017, 20). The CEDAW recommendations also entail that women seeking asylum must be provided with information on their rights and practical information on how to gain access to such services in a language they understand (CEDAW/C/GC/32, 11). To ensure effective gender-sensitive procedures, the authorities must ensure systematic information given to asylum-seeking women about their rights, as women. Though some information is given, according to the evaluation report conducted by Council of Europe, limited information is offered to asylum-seekers by the Immigration Service about the importance of the first interview, and on what constitutes relevant information in the eyes of a case worker (Council of Europe; 2017, 58)
6.2.2. Consideration of trauma
Gender-sensitivity should also be reflected in reception procedures, taking into account specific needs of victims of sexual abuse, exploitation, trauma and torture. In the General Recommendations 32. issued by the CEDAW Committee it is stated that “Pursuant to articles 1, 2, 5 (a) and 12 of the Convention, failure to address the specific needs of women in immigration detention and ensure the respectful treatment of detained women asylum seekers could constitute discrimination within the meaning of the Convention” (CEDAW/C/GC/32, 11),
Denmark shows no example of any practical arrangements for taking appropriate considerations in the asylum registration process concerning the asylum seeker’s age, health and gender (Nordic Council, 2016, 5). In relation to the specific needs of women it was also found in a study from 2018 that significant barriers exist for women in accessing psychological support in the Danish asylum system and certain support services for domestic violence are not always available (Canning, 2019, 49). The main reasons for women not accessing psychological or emotional support for sexual violence, torture or domestic abuse is due to lack of information and limited amount of time. Although it is commonly accepted that women are reluctant to disclose instances of violence, case practitioners might also feel uncomfortable asking questions or discussing sexual or domestic violence, if sufficient training is not provided (Pedersen, 2017, 31). Denmark has previously provided training on gender issues to all case practitioners (UNHCR, 2004, 113). However, in relation to consideration of traumas and abuse, it is unclear what their approach is (UNHCR, 2004, 116). Denmark has been criticized in several studies for its the lack of response to victims of abuse, trauma and violence (Canning, 2019; Canning, 2018). Guidelines also subscribe that interviewers and interpreter should be aware of any cultural or religious sensitivities, and take cultural differences into account (UNHCR, 2004, 10). However, there is very little evidence that cultural differences are considered in Danish
26 asylum procedures. In most cases there is only a general reference to cultural sensitivity during interviews (UNHCR 2004, 126, Council of Europe, 2017, 58). Similarly, in a report conducted by Danida in 2019, Denmark obtained weak scores in the gender perspective, particular due to a lack of attention to harmful gender identities, including harmful masculinities, and the role that these play in conflicts (Ministry of Foreign Affairs, 2019, 60).
6.3. Gender-based violence as a form of persecution
Applying the principles of the Istanbul Convention should assist states to identify the serious nature of the harm caused by gender-based violence against women and how this meets the definition of “persecution” in the Refugee Convention (Council of Europe, 2014, 25). According to the CEDAW Committee: “For women fleeing gender-related forms of persecution such as gender-based violence, it is crucial to identify and understand these forms of persecution” (CEDAW/C/GC/32). The UNHCR has reported that common problem facing women asylum-seekers is the failure of decision makers to incorporate gender-related claims into their interpretation of the persecution grounds, and failure to recognize the political nature of “private” acts of harm to women (UNHCR, 2004, 35; Crawley, 2001, 18). Policy and practice indicate that sexual violence is still considered to be a private act rather than an act of persecution in Danish asylum practices (UNHCR, 2004, 35).
Denmark has recognized sexual violence as a possible form of persecution, however, only within a strict criteria that requires the treatment to be severe or life threatening, and when the victim is unable to rely on social networks or public bodies for support in the country of origin (UNHCR, 2004, 35). Interpretations of “sexual violence” do include rape and female genital mutilation. However, complementary protection has mainly been granted for such cases, as they are not considered to constitute recognition under the Refugee Convention (Ingvardsen, 2004, 10).
States must also recognize that discrimination can amount to persecution. Denmark recognizes that in certain cases, discrimination can amount to persecution, in law, policy or case law (UNHCR, 2004, 43). In Denmark, protection status has been granted to some women from countries where discriminatory legislation places them at risk of severe punishment. For example, Iranian women who had been unfaithful, and had left the country without their husbands’ permission. In 2009 the Refugee Appeals Board granted an Iranian woman refugee status under the Danish Aliens Act § 7
27 (2) because of threats of punishment by the government for unfaithfulness 3and likewise in 2010 to another Iranian woman under the Danish Aliens Act § 7 (2).4
Female Genital Mutilation (FGM) has only recently been accepted into Danish practice as a reason for asylum (Lemberg-Pedersen et al, 2019, 7). However, families claiming a risk for FGM for their daughters, can be rejected on grounds that the parents are resourceful enough to avoid the practice (Lemberg-Pedersen et al, 2019, 7). The UN Committee for the Rights of the Child (UNCRC) criticized Denmark for this position in 2018 (Refugee Appeals Board, 2018; Lemberg-Pedersen et al, 2019, 7). However, in certain cases applicants have been provided with § 7 (2) under the Aliens Act5, and in several decisions in recent years, the board has also provided convention status § 7 (1) to Somali nationals, if parents are found to not be able to withstand the pressure from the community of getting their daughters circumcised6 (Lassen et al, 2017, 224).
In some instances, victims of forced marriage have also been provided with convention status. In a Danish Refugee Appeals Board’s decision from 2017, an Afghan woman was granted refugee status under the Danish Aliens Act § 7(1) due to the threat of forced marriage in Afghanistan. She was found to belong to the particular social group of ‘widows at risk of forced marriage’ (Council of Europe, 2019, 18)7. However, in many cases based solely on gender-based violence, women are not granted asylum.8 (Ingvardsen, 2004, 10).
6.4.Gender-sensitive interpretation of the Convention grounds
Women are not guaranteed a gender sensitive treatment when they seek protection and are often confronted with legislation and policy that fail to meet acceptable standards (UN women, 2017, 50). Article 60 (2) of the Istanbul Convention requires states to ensure that a gender-sensitive interpretation is given to each of the Refugee Convention grounds (Council of Europe, 2014, Art. 60). Ensuring a gender-sensitive interpretation implies recognizing and understanding how gender can have an impact on the type of persecution or harm suffered (UNHCR, 2004, 99).
In principle, the use of complementary forms of protection occur when an applicant needs international protection against abuse, outside the scope of the Refugee Convention. Many States,
3 Iran/2009/11 4 Iran/2010/15 5 Soma/2018/66/LINB 6 Soma/2016/81/MVI 7 afgh/2017/263/JHB
28 including Denmark, use complementary status, where it would be legally correct to apply convention status (Lassen et al, 2017, 154).
6.4.1. Distribution of asylum status
In 2002, the tradition of granting asylum to “de facto” 9refugees changed (Kjær, 2003, 255). It was typically applied for applicants who had not been subjected to persecution by the authorities but instead by private individuals. The tradition granted asylum as de facto refugees to applicants who had been subjected to gender-related persecution (Kjær, 2003, 258). In connection with these changes in 2002, the UNHCR strongly criticized its exclusion of international protection. In cases decided after 2002 by the Danish Refugee Appeals Board, concerning “gender-related persecution” and/or “other gender-related issues”, a common feature is that applicants have either been granted complementary protection status or have been rejected (Refugee Appeals Board, 2020; Lassen et al, 2017, 221). Asylum status § 7(3) was introduced in 2015, as a more temporary status and has mainly been used for Syrian women (Lassen et al, 2017, 219).
When looking at positive decisions made by the Immigration Service in asylum cases, convention status § 7 (1) is the strongest category of protection, as it is easier to prolong (New to Denmark, n.d.). When looking at proportions of all positive decisions, the proportion is higher for male applicants than for female applicants in Denmark (The Immigration Service, 2019). However, more women are granted temporary protection under § 7 (3) (Schultz-Nielsen; 2016; Lemberg-Pedersen, 2019). This is also shown in statistics provided from the Immigration Service (The Immigration Service, 2018). In a reply from the Ministry of Immigration to the Danish Parliament concerning distribution of gender in statistics in 2016 (Ministry of Integration and Immigration, 2016b) statistics show that there still exists a gender-distorted distribution of convention status in Denmark. For instance, most Syrian men are accorded convention status under § 7 (1), while most Syrian women receive the weakest temporary protection status under paragraph § 7 (3) (Mansour, 2020). This means that often cases concerning women are not seen to fulfill the grounds of persecution under the Refugee Convention. The Ministry of Immigration and Integration are of the opinion that the introduction of §7 (3) is “gender neutral” and that the equality consequences will only depend on which asylum
9 Before 2002:” Upon application, a residence permit will also be issued to an alien who does not fall within the provisions of the Convention relating to the Status of Refugees” (Kjær, 2003, 257).
29 seekers come to Denmark and are covered by the provision in §7 (1) of the Aliens Act (Ministry of Integration and Immigration, 2016a).
6.4.1. Gender-related persecution
The Danish Refugee Appeal Board has dealt with many cases involving gender-related persecution. Although few states, including Denmark have taken steps to define “persecution” or “well-founded fear of persecution” in national legislation, it is generally accepted that a threat to life or freedom on account of race, religion, nationality, political opinion or membership in a particular social group constitutes persecution (Valji, 2003, 64). Denmark has for example recognized that women’s political activities may take a different form, either through law, policy, or case law (UNHCR, 2004, 69). The UNHCR has recognized in several resolutions that gender can be a major factor in persecution on the grounds listed in the refugee definition. Denmark has also recognized that a failure to conform to religious customs for example, can form the basis for a successful refugee claim (UNHCR, 2004, 72). The UNHCR guidelines also address the possibility that a woman may be targeted for political reasons unconnected to her own activities or stance (UNHCR 2002a, para. 22; Lassen et al, 2017, 251). Denmark does recognize the possibility of imputed convention grounds, and it is also recognized that women may face persecution in connection to their gender (Lassen et al, 2017, 118). However, “particular social group” does not feature in Danish asylum legislation or case law (Refugee Appeals Board, 2020). In two recent decisions of 2016, the Refugee Board announced convention status to women who risked forced marriage with specific referral to "affiliation with a special social group" (Lassen et al, 2017, 227). 10These decisions are a new practice using a correct interpretation of the Refugee Convention (Lassen et al, 2017, 227). However, in a case from 2016, the Refugee Board granted protection status § 7 (2) to an Afghan woman and did not find that the applicant belonged a “particular social group” within the meaning of the Refugee Convention). 11 Single women in Afghanistan are subject to violations in such a way that they could be recognized as convention refugees and be given asylum in Denmark according to the Aliens Act §7 (1) (Bendixen, 2013, 27).
10Afgh/2016/183/lrn, Afgh/2016/188/snd 11 afgh/2016/194/MNR
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7. Evaluation of impacts of implementation and practices in the Asylum System
In the previous section international and national legal frameworks were compared, to examine what aspects of international gender-guidelines Denmark has implemented in practice. In this section dominant frames that were highlighted through the challenges presented in the previous section will be examined. These will be examined to seek out what consequences’ asylum practices may have for women seeking asylum in Denmark. These frames relate to elements such as norms and practice, concerning “gender-neutrality”, “representation” and “private activities”. As Verloo (2005) mentions, frames are not only there to understand reality but are also normative assumptions of which actors are unconscious, that affect the interpretation of problems (Lombardo, 2009, 11). Having identified these frames in the asylum system, the connections of impacts they may have on women in Denmark will be illuminated. Frame analysis helps identify practices and norms that people interpret and give meaning to reality, whilst applying standpoint theory help understand the effects of policy and legislative implementation on the individual lives of women in the asylum system (Zeigler, 2000, 116).
7.1.Frame One: Gender “neutrality” in asylum practices and legislation
This general frame highlights the overall approach to gender-sensitivity in Danish asylum practices. Gender “neutrality” is one of the dominant frames employed in Danish asylum practices and legislation. To identify the impact this frame might have on women, I will look at whether the concept of gender is fully understood, and whether there is strong commitment to gender-equality present in the asylum practices.
7.1.1. Gender equality
It has been increasingly recognized that although international refugee instruments are “gender neutral”, their interpretation by the State, at both national and international level, reflects and reinforces “gender biases” (Crawley, 2001, 5).
Several changes have been made to Danish asylum legislation in recent years, resulting in stricter requirements for asylum seekers. Though numbers show gender-distorted residence permits, the Danish Ministry of Immigration and Integration are still of the opinion that these changes to asylum legislation are “gender neutral” (Ministry of Immigration and Integration, 2016). Amnesty
